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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
                                )
THREE EAGLES OF COLUMBUS, INC.   )    File No. 99040101
                                )    NAL/Acct. No. X32080013
Licensee of Station KROR(FM)     )    Facility #26649
Hastings, Nebraska               )    JJS
                                )

                        FORFEITURE ORDER

   Adopted:  August 23, 2000            Released:    August   24, 

2000                                     

By the Chief, Enforcement Bureau:

                        I.  Introduction

     1. In this forfeiture order, we impose a six thousand dollar 
($6,000)  forfeiture  against  Three  Eagles  of  Columbus,  Inc. 
(``Three Eagles''), licensee of KROR(FM), Hastings, Nebraska.  We 
find that  Three  Eagles violated  18  U.S.C. 1464  and  Section 
73.3999 of  the  Commission's  rules, 47  C.F.R.    73.3999,  by 
broadcasting indecent material.

     2. On April 28, 2000, the Chief, Enforcement Bureau, issued 
a Notice of Apparent  Liability for Forfeiture  in the amount  of 
seven thousand  dollars  ($7,000)  against  Three  Eagles.  Three 
Eagles Broadcasting, Inc.,  DA 00-951 (released  April 28,  2000) 
(``NAL'').  Three  Eagles  filed  its  response  (``Three  Eagles 
Response'') on May 30, 2000.

                         II.  Background

     3.   The Commission received a complaint alleging that Three 
Eagles broadcast indecent  material on February  26, 1999  during 
the ``Bob  and Tom  Show'' between  6:00 a.m.  and 9:45  a.m.   A 
transcript of the broadcast in  question is attached to the  NAL.  
On October 27, 1999, the  Mass Media Bureau requested that  Three 
Eagles comment  on  the  complaint.  In  its  November  30,  1999 
response, Three  Eagles  admitted broadcasting  the  material  in 
question, but denied that the material was indecent.

                        III.  Discussion

     4.   Three Eagles argues  that a variety  of factors  compel 
the conclusion  that no  forfeiture  should be  imposed.   First, 
Three Eagles claims that prior to this broadcast, KROR(FM) had an 
unblemished broadcast record under its ownership.  Second,  Three 
Eagles argues  that  the program  in  question was  a  syndicated 
program that Three Eagles monitored in good faith.  Third,  Three 
Eagles claims that the broadcast was ``a short segment in a four-
hour program early on  a morning in  February when most  children 
who could intellectualize the broadcast  would be in a school  in 
the small community of Hastings.''  Three Eagles Response, p.  2.  
Fourth, Three Eagles claims  that the $7,000 forfeiture  proposed 
is inconsistent  with forfeitures  imposed  in other  cases.   It 
finally argues that the action in this case is inconsistent  with 
the dismissal of  an indecency  complaint in  Letter to  Benjamin 
Perez, Esq., File No. EB-00-IH-009 (EB May 18, 2000).

     5.     We reject Three Eagles' argument that a forfeiture is 
inappropriate.  The  Commission  defines broadcast  indecency  as 
language or material that, in  context, depicts or describes,  in 
terms patently offensive  as measured  by contemporary  community 
standards  for  the   broadcast  medium,   sexual  or   excretory 
activities  or  organs.   Infinity  Broadcasting  Corporation  of 
Pennsylvania, 2  FCC Rcd  2705  (1987), affirmed  3 FCC  Rcd  930 
(1987) (subsequent  history  omitted)  (citing  FCC  v.  Pacifica 
Foundation, 438 U.S. 726 (1978)).  Three Eagles does not directly 
contest the finding in the NAL that the material appeared to fall 
within  the  statutory  definition  of  indecency.   It   argues, 
however, that the language at issue in Letter to Benjamin  Perez, 
Esq. ``was more egregious by far than the tone and content of the 
KROR transmission.''  Three Eagles Response, p. 2.  That argument 
has no merit because,  in order for material  to be indecent,  in 
must not only be ``patently  offensive'' but also must depict  or 
describe ``sexual or excretory activities or organs.''  While the 
material in Perez was  highly offensive, it  did not fall  within 
the  statutory  definition  of   indecency.   In  contrast,   the 
broadcast material  in  this  case  falls  squarely  within  that 
definition.  Moreover,  while  Three Eagles  suggests  that  most 
children would be  in school  during the time  of the  broadcast, 
Congress has  directed  the  Commission to  enforce  the  ban  on 
indecent broadcasts during  the morning time  period at issue  in 
this case,  and  the  United  States Court  of  Appeals  for  the 
District of  Columbia Circuit  has  upheld that  directive.   See 
Action for  Children's Television  v. FCC,  852 F.2d  1332,  1341 
(D.C. Cir. 1988).  Furthermore, while the program in question was 
a syndicated program,  the Commission has  emphasized ``that  the 
licensee is ultimately responsible  for all programming aired  on 
its station, regardless of its source.''  Revision of Radio Rules 
and Policies, 7 FCC  Rcd 6387, 6401  (1992).  While Three  Eagles 
admits that  it has  monitored the  program in  question and  has 
expressed concerns about program content to the program supplier, 
it does not claim to have  taken any action with respect to  this 
particular broadcast.   We believe  a forfeiture  is  appropriate 
because  the  broadcast   meets  the   statutory  definition   of 
indecency,  the  material  was  broadcast  at  a  time  when  the 
Commission has authority  to regulate  indecent programming,  and 
Three Eagles has not demonstrated any special circumstances  that 
would make a forfeiture inappropriate.

     6.   We also reject Three  Eagles' argument that the  amount 
of  the  proposed  forfeiture   ($7,000)  is  inconsistent   with 
forfeiture amounts in other indecency cases.1  None of the  cases 
Three Eagles  cites applied  the Commission's  Forfeiture  Policy 
Statement2 because  the violations  in those  cases predated  the 
effective  date   of  the   Forfeiture  Policy   Statement.    By 
establishing $7,000 as the  base forfeiture amount for  indecency 
violations, the Commission made the judgment that, in the absence 
of mitigating or aggravating  factors, $7,000 was an  appropriate 
amount.  The  fact  that  the  Mass  Media  Bureau  issued  lower 
forfeiture amounts  in cases  not  decided under  the  Forfeiture 
Policy Statement, which was adopted after notice and comment,  is 
not a basis for arguing that  the forfeiture amount in this  case 
is too  high.  Three  Eagles  has not  argued that  the  proposed 
forfeiture amount  is  inconsistent with  the  Forfeiture  Policy 
Statement or any of the cases applying the statement.  Our action 
is consistent  with cases  decided  under the  Forfeiture  Policy 
Statement.  See,  e.g., Citicasters  Co. (WXTB(FM)),  13 FCC  Rcd 
22004 (1998), forfeiture  imposed FCC 00-230  (released June  27, 
2000) ($23,000 forfeiture imposed for four indecent  broadcasts), 
Communicast Consultants,  Inc.,  DA 00-1567  (released  July  14, 
2000)  ($7,000  forfeiture  proposed  for  indecent  conversation 
during a call-in show).

     7.   Three Eagles claims, and  a review of the  Commission's 
records confirms,  that prior  to the  violation at  issue  here, 
Three Eagles had  a history of  compliance with the  Commission's 
rules.   Section   503(b)(2)(D)  of   the   Act,  47   U.S.C.    
503(b)(2)(D), requires the Commission  to consider ``any  history 
of prior offenses,''   among other factors,  when establishing  a 
forfeiture amount.  We note, however,  that Three Eagles was  not 
authorized to hold the KROR(FM) license until September 5,  1997.  
See File No.  BAL-19970701EB, granted September  5, 1997.   Given 
the relatively short period of time between the time Three Eagles 
acquired the station and the date of the violation (February  26, 
1999), we  believe that  Three Eagles  can only  receive  limited 
credit for  its  prior  record of  compliance.   Based  upon  our 
consideration of  the record  as  a whole,  we believe  a  $6,000 
forfeiture is appropriate.
 
                      IV.  Ordering Clauses

     8.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the Act, 47 U.S.C.  503(b), and Sections 0.111,  0.311 
and 1.80(f)(4)  of  the  Commission's  rules,3  Three  Eagles  of 
Columbus, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the  amount 
of six thousand dollars ($6,000), for its willful violation of 18 
U.S.C.  1464 and Section  73.3999 of the Commission's rules,  47 
C.F.R.  73.3999.

     9.   Payment of the forfeiture shall  be made in the  manner 
provided for in Section 1.80 of the Commission's rules within  30 
days of the release of this Forfeiture Order.  If the  forfeiture 
is not paid within the period specified, the case may be referred 
to the Department of Justice  for collection pursuant to  Section 
504(a) of the  Act, 47 U.S.C.   504(a). Payment  may be made  by 
credit card through the  Commission's Credit and Debt  Management 
Center at  (202)  418-1995  or  by mailing  a  check  or  similar 
instrument, payable to  the order of  the Federal  Communications 
Commission, to the  Federal Communications  Commission, P.O.  Box 
73482, Chicago, Illinois 60673-7482.  The payment should note the 
NAL/Acct. No. referenced above.  Requests for full payment  under 
an installment plan  should be  sent to: Chief,  Credit and  Debt 
Management Center, 445 12th Street, S.W., Washington, D.C. 20554.  
See 47 C.F.R.  1.1914.

     10.   IT IS FURTHER ORDERED  that a copy of this  Forfeiture 
Order shall be sent, by Certified Mail/Return Receipt  Requested, 
to Three  Eagles'  counsel, Richard  F.  Swift, Esq.,  Swift  Law 
Offices, 2175 K Street, N.W., Suite 350, Washington, DC 20037.

                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1  The cases Three Eagles cites are Clear Channel Radio Licensee, 
Inc., 13 FCC Rcd 17254 (MMB 1998), Jacor Broadcasting Corp., 13 
FCC Rcd 4152 (MMB 1997), American Radio Systems License Corp., 8 
CR 941 (MMB 1997), Nationwide Communications, Inc., 6 FCC Rcd 
3695 (MMB 1990), and Guy Gannett Publishing Company, 6 FCC Rcd 
3702 (MMB 1989).

2 The Commission's Forfeiture Policy Statement and Amendment of 
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17107 
(1997), recon. denied 15 FCC Rcd 303 (1999).

3  47 C.F.R.  0.111, 0.311, 1.80(f)(4).